BLACK SASH
SUBMISSION WITH REGARD TO THE OPEN DEMOCRACY BILL [NO 67-98]

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

These words, taken from the preamble of the Open Public Meetings Act of the State of Washington, give one perspective on why the right to access to information is so important.

Another perspective is that of the advice seekers that we see in the Black Sash offices for whom this right, along with the right to administrative justice, is key to unlocking another right, the right to social security. The right to know - why a decision has been made , how it is made and the right even to witness the deliberations leading to the decision: this right is a critical part of an open and democratic society.

It is for these reasons that the Black Sash welcomes the tabling of this Bill. We have a number of reservations about the drafting of this Bill and certain of its parameters - these should not detract from our general applause of the objects of the Bill.

1.The first reservation we wish to raise regards the omission from this Bill of the section on open meetings which was contained in previous drafts of the Bill.

In comparative jurisdictions this question is dealt with differently. According to the research available to us Canada and England do not have national legislation which deals with this issue. Instead it is dealt with at provincial level. It is particularly appropriate, therefor, that this legislation is being dealt with first by the chamber dealing with provincial concerns most closely, and we believe that the National Assembly Portfolio Committee should pay close attention to the reasoning and argument of this committee on this Bill.

In England the legislation regarding open meetings relates specifically to meetings of local government councils. Our Constitution also refers to the meetings of local councils, stating that

160 (7) A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted.

This Bill should therefore AT VERY LEAST address the regulation of such access, with regard to notice periods for meetings, etc. In Canada open meetings are also dealt with at provincial level.

In the United States there are laws to this effect at both state and federal level. These laws serve to clarify for the people and the state their responsibilities and rights with regard to how open meetings should be conducted.

For example, the state of Idaho, has an open meetings law which regulates what is and is not a governing body, requiring that it be a public agency which consists of two or more people, with the authority to make decisions for or recommendations to a public agency regarding any matter. It regulates what meetings may take place in closed session, and deals with what it calls "executive sessions" where matters such as staff decisions, labour negotiations, litigation etc. are discussed.

The sections in the Open Democracy draft Bill are more extensive, and more detailed.

If they are not reincorporated into the Bill the parameters of these rights will have to be established through costly and time consuming litigation. We would strongly urge this committee to reincorporate the open meetings sections, although it may be more practical to make the legislation more flexible, allowing for special meetings and emergencies.

"Emergencies" should however be closely defined, and there should be a requirement that at least an effort be made in good faith to provide advance notification, even in an emergency.

2. We are very concerned about another issue. This is the question around whether or not the right to access to information as contained in section 32(1) is actually fully enacted in this legislation. This legislation does not deal adequately with the second part of that clause.

The legislation does make provision for
• access to personal information held by private bodies.
• correction of inaccurate information about personal information held by private or governmental bodies
• the use of and disclosure of personal information held by private or governmental bodies
• collection, retention accuracy and disposal of personal information.

It does not deal with *any* information that is required for the exercise or protection of *any* rights in the context of private bodies or natural persons.

The Constitution requires that national legislation must be enacted to give effect to sections 32(1) (a) and (b). If it does not fully give effect to this right, what are the consequences? It may be that the requirement to pass legislation in section (2) simply falls away and that section 32(1) then comes into operation, and the caveat of section 31(2), that the legislation may provide for reasonable measures to alleviate the administrative and financial burden on the state, also falls away, and only the general limitations clause applies. It is not clear what effect this will have.

Alternatively, the Constitutional Court may be approached to order Parliament to amend the legislation so that it complies with section 32(1). This would result in a lack of clarity around this important facet of this right. It would really assist matters if this confusion is dealt with by this Committee, and that the second part of the right be dealt with fully in legislation.

It is very often the relationship of the individual and private bodies which is most important to the average person, and often that relationship is one of a great imbalance of power. The divide between the public and the private has become increasingly blurred, and through GEAR and the current policy of privatisation, will become more so. What used to be public functions will become private - but the relationship of the individual to the private body may be one in which the private body holds comparative power to the state.

3. Information officers, in terms of section 4 of the Bill, must be appointed to all governmental bodies. There is no indication in the legislation as to the status of information officers. It is apparently the experience in America that where information officers are not sufficiently senior, they just are not able to access information held by more senior officials. The very hierarchical nature of South African government in the past has only begun its transformation and the problem is likely to be an even greater one in South Africa. If this law is to work for people, then the people who are there to facilitate its functioning should be properly empowered to do so.

4. The Human Rights Commission is tasked with a number of functions in terms of this Bill. Sections 82 and 83 place a heavy burden on the Commission. It may be more appropriate to place these functions elsewhere. This matter is one which should be thoroughly canvassed with the Commission.

5. The bill should provide a framework for moving beyond "freedom of information" to the implementation of a more accessible "right to know" model. The bill currently provides mainly for access to information upon request, with provision made for complex exceptions and appeals. This approach is not accessible to the vast majority of South Africans who lack the resources and capacity to engage in an adversarial process. The bill should therefore provide for pro-active dissemination of certain categories of government information and important privately held information. This will increase the flow of information to the public, while also easing the administrative burden on the government of replying to individual requests for public records.

6. If the right of access to information is to be meaningful the enforcement procedure must be cheap, speedy and accessible, otherwise the Act will be used by the rich and powerful to defend their interests. External review by the High Court, as currently envisaged by the Bill, does not provide a remedy that is cheap, speedy and accessible - in fact, the reverse. Hence, a creative, innovative - and cost effective - alternative, such as a tribunal, must be considered.